DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JON W. HAY,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 2D21-2167

September 21, 2022

Petition for Writ of Certiorari to the Circuit Court for Lee County; 

Bruce E. Kyle, Judge.

Kathleen A. Smith, Public Defender, and Nicole Calderone, Assistant 

Public Defender, Fort Myers, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad 

Martin, Assistant Attorney General, Tampa, for Respondent.

SMITH, Judge.

This is a petition seeking certiorari review of an order denying 

the public defender's request to withdraw as appointed counsel 

based on an alleged conflict. We grant the petition because, under 
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the circumstances presented by this case and the existing case law, 

the trial court departed from the essential requirements of the law 

in denying the request to withdraw. 

In keeping with language used in similar cases, the conflict in 

this case was articulated as related to the representation of Jon Hay 

and another defendant represented by the same office or with an 

attorney in that office, and it apparently arose from a conversation 

between Mr. Hay and his appointed assistant public defender when 

Mr. Hay was in the State Hospital. In the amended certification of 

conflict, the assistant public defender alleged: 

After a careful investigation and weighing of the 

facts of this case, the Public Defender has conclusively 

determined that the interests of Jon Webster Hay are so 

adverse and hostile to those of another client and/or an 

attorney within the Office of the Public Defender that a 

conflict of interest exists. 

As a result of this conflict of interest, the Public 

Defender cannot adequately or ethically continue to 

represent the Defendant.

At the hearing on the amended certification of conflict, the 

assistant public defender advised the trial court that she was 

ethically precluded from providing more specific information 

regarding the conflict than that provided in the amended 
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certification of conflict. Finding the amended certification of conflict 

insufficient, the trial court denied the request to withdraw because 

it was "unable to determine the nature of the asserted conflict from 

the generic form, and [was] thus unable to determine if the asserted 

conflict is prejudicial to the indigent client." 

Although we recognize and appreciate that trial courts are 

hamstrung by a statute which allows trial courts to conduct a 

hearing but precludes trial courts from asking much about the 

nature of the conflict in cases of alleged conflict like this, it was a 

departure from the essential requirements of law for the trial court 

here to deny the public defender's request to withdraw under the 

facts set forth in the requests and outlined in the transcripts of the 

hearings in this case. See § 27.5303(1)(a), Fla. Stat. (2020); Young 

v. State, 189 So. 3d 956, 961 (Fla. 2d DCA 2016) ("The trial court 

departed from the essential requirements of the law because it 

necessarily compelled the assistant public defender to make the 

unsavory choice between disclosing privileged information and 

potentially being permitted to withdraw or depriving his client of the 

constitutional right to be represented by conflict-free counsel."); see 

also Brower v. State, 267 So. 3d 524, 525 (Fla. 5th DCA 2019) 
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("Even though the exact nature of the conflict was unknown, the 

trial court nevertheless departed from the essential requirements of 

law when it inquired into privileged and confidential matters and 

denied Petitioner's facially sufficient motion to withdraw."). 

The trial court's additionally stated conclusions regarding 

factual discrepancies or other reasons for seeking withdrawal also 

are not supported by the facts presented in the amended 

certification of conflict or within the transcripts of the related 

hearings. The arguments presented by the assistant public 

defender centered solely around particular information received in a 

conversation between Mr. Hay and his appointed counsel.1 Cf. 

1

 When reviewing an order via certiorari our review is limited 

by the appendices filed by the parties. We do not have the benefit 

of the entire record before us. We recognize that there may be facts 

and details in the full trial court record that could factor into the 

trial court's reasons for denying the request to withdraw that 

remain unknown to this court and are outside the body of what we 

are tasked with considering within the petition presented. Likewise, 

the relief available through certiorari review is limited to quashing 

the order under review. Beyond recognizing the applicable cases 

and rules and acknowledging the understandable frustration of a 

trial court tasked with making a determination under 

circumstances where cases have made clear that full disclosure is 

not possible due to the asserted privilege, we make no comment on 

whether the public defender must be permitted to withdraw 
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Gordineer v. State, 335 So. 3d 232, 236 (Fla. 2d DCA 2022) ("[T]here 

is no record basis to believe that Gordineer's claim has been 

manufactured for the purpose of manipulating the system. On 

these facts, the circuit court's concern that Gordineer was shopping 

for a new attorney was completely unfounded."). We therefore grant 

the petition and quash the order denying the public defender the 

ability to withdraw from its representation of Mr. Hay.

Petition granted; order quashed.

SILBERMAN and LUCAS, JJ., Concur.

Opinion subject to revision prior to official publication.

following this opinion should the record and case law support such 

a determination.